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Thread: Cruz introduces bill defending states' rights on marriage

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    Re: Cruz introduces bill defending states' rights on marriage

    Quote Originally Posted by chromium View Post
    i would rather wait until june than to 'win' under a false banner. In addition, depending how the majority ruling is worded, orientation may indeed be construed as a protected class starting this summer. Then the dominoes really start to fall in terms of employment and housing rights etc
    That's nice. For you.
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    Re: Cruz introduces bill defending states' rights on marriage

    Quote Originally Posted by Lursa View Post
    That's nice. For you.
    Yeah, my heart really weeps for the same sex 'friends' who don't love each other and aren't going to live together, but want to marry for tax benefits

    Or is there some other group you're referring to?

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    Re: Cruz introduces bill defending states' rights on marriage

    Quote Originally Posted by chromium View Post
    Yeah, my heart really weeps for the same sex 'friends' who don't love each other and aren't going to live together, but want to marry for tax benefits

    Or is there some other group you're referring to?
    Nope. I, nor they, recognize any difference in desiring to marry the person they love, those that have, and those that still desire to...
    on the dates that they set...just like any straight couple.

    If you think you hold some High Ground here, you do not.
    Quote Originally Posted by Bucky View Post
    I have felt pain when I was in the womb. So when you say they are incapable of feeling pain, that is based on junk science.
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    A murderer putting a bullet through someone's brain is a medical procedure too.

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    Re: Cruz introduces bill defending states' rights on marriage

    Quote Originally Posted by chromium View Post
    I'm saying if it became a pattern like a critical mass of people started marrying their friends they don't live with, just for tax benefits or immigration or whatever, it would be a "compelling government interest" to not allow it. I could "sell" a green card to a foreigner by marrying them. I could bribe a witness to marry me before they get to testify against me in court. Yes, these tactics are done already. But if marriage became so cheapened it became more common to marry a friend than partner, don't expect the INS or justice dept or adoption agencies to sit there and go along with it.

    But this is the last i intend to say about it, because to me, SSM has always been about the rights of gay couples
    It isn't likely to become "a pattern" any time in the near future though. If it was, it could have already happened with opposite sex couples. Plus, marriage has only recently has been about love and/or attraction. That is a relatively new thing.

    Plus, I am not saying that it would be okay to "sell" the relationship. There is a difference between two people who know each other deciding to get married so that neither is alone and a person selling their ability to be a spouse and some of the privileges that come with it, particularly the one dealing with immigration. In fact, that is the only one that concerns me because it is the main one that generally would involve a money exchange to be a spouse for a purpose that is purely for some gain by each party. It has nothing to do with any kind of relationship.

    The witness thing wouldn't work. The rules regarding spousal testimony only apply to things actually heard/seen during the marriage, not prior to it. You therefore would have to know that the person was going to witness/hear something that could cause them issues, something illegal, prior to it happening.

    Single people should already be allowed to adopt so long as they can care for the child. In many places, they are.
    "A woman is like a teabag, you never know how strong she is until she gets in hot water." - Eleanor Roosevelt

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    Re: Cruz introduces bill defending states' rights on marriage

    Quote Originally Posted by chromium View Post
    i would rather wait until june than to 'win' under a false banner. In addition, depending how the majority ruling is worded, orientation may indeed be construed as a protected class starting this summer. Then the dominoes really start to fall in terms of employment and housing rights etc
    It's not a "false banner" though. Just like the word "marriage" does not belong to straight couples, same sex marriage does not "belong" to gay couples either. You don't get to determine why people of any combination of sexual attractions get married. That is a personal decision of theirs, and it should be none of the business of the courts either or public either so long as there is no illegal coercion involved, such as blackmail or undue influence or abuse.
    "A woman is like a teabag, you never know how strong she is until she gets in hot water." - Eleanor Roosevelt

    Keep your religion out of other people's marriages.

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    Re: Cruz introduces bill defending states' rights on marriage

    "There is an additional argument that advocates of equality for same-sex couples had previously relied upon fairly heavily but more recently have given less emphasis: that discrimination against them is also discrimination that is based on gender, as such. Bans on same-sex marriage, this claim goes, forbid a man to marry a person that a woman could marry, and vice versa, and the difference is based directly on gender. Again, the advocates rely upon the Supreme Courtís 1967 decision to protect marriage between the races, noting that a ban on such marriage was not neutral just because it applied to two races; a person of either race was barred from marrying a person of the other. One of the reasons that this argument tends to be downplayed now is that the Supreme Courtís 1972 decision in the Minnesota case, however limited it was, at least implied that a ban on same-sex marriage did not violate gender equality principles."
    Same-sex marriage II: The arguments for : SCOTUSblog

    So, same as before, unless the strategy is to empty the legal quiver of every arrow - used & new, it seems wise to present arguments that don't look like they've already missed the target.
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    Re: Cruz introduces bill defending states' rights on marriage

    Quote Originally Posted by bubbabgone View Post
    Same-sex marriage II: The arguments for : SCOTUSblog

    So, same as before, unless the strategy is to empty the legal quiver of every arrow - used & new, it seems wise to present arguments that don't look like they've already missed the target.
    Again, you show a lack of understanding of the judicial process and constitutional law. The court case it's referring to is not a SCOTUS case but actually a lower court case. The SCOTUS at the time did not actually take up the case, declaring that it was lackinga substantial federal question. That is not the case currently. Baker v. Nelson was also heard in 1972, a time in which no current members of the SCOTUS were on the bench AND prior to new precedence being set that classify gender as a hightened teir of scrutiny.

    Baker v. Nelson was a case ruled on at a time when precedent did not require gender discrimination to be substantially related to serving an important state interest. As such, it is not unquestioned defacto precedent today because it's ruling was based on a different criteria than exists on precedent today. Just as prevoius SCOTUS cases created precedent that was then undone when Brown v. Board of Education became precedence, so too could one argue that Baker v. Nelson's precedence is not definitive post Craig v. Boren and as such is worthy of another look by the SCOTUS.

    Baker v. Nelson, at best, indicates precedence that Gender descrimination when it comes to marriage does not rise to the level of violating the lowest tier of the EPC. However, it in no way provides precedence that Gender discrimination when it comes to marriage does not rise to the level of violating intermediate teir requirements of the EPC.

    Additionally, your argument that this has "already missed the target" is a poor one given the fact that post Windsor, only one of the multiple court of appeals that had these cases before them held that Baker had any actual controlling precedence in the case. I'd note, that the Windsor verdict came after your blog entry.

    From a technical sense, Baker is still precedence until the SCOTUS rules on the issue directly. However, the fact that lower appeals courts have not had a consistent record in recent years of applying it and/or outright disagreeing with it, the fact that it was ruled at a time prior to significant changes regarding the heightened scrutiny given to gender, and the fact you have a current SCOTUS Justice suggesting you can't extract much from Baker due to that makes a claim that it's "already missed the target" laughably naive and ignorant of the relaities of constitutional law.

    Precedence is not permanently binding, nor is it an entirely unheard of thing for the SCOTUS to re-look at a particular issue in light of changes that have occured since the previous ruling, and alter precedence. Considering multiple lower courts have found that the gender argument is legitimate, a SCOTUS justice has intimated that not much can be read into the Baker ruling, and the fact that there have been significant chances in precedence regarding constitutional law and the EPC in terms of Gender since the time Baker was ruled on, it is absolutely still a legitimate potential challenge on the constitutional nature of marriage. Baker provides no argument, what so ever, that gender discrimination in marriage doesn't violate the intermediate scrutiny necessary because at the time of it's ruling Gender was not deemed to require intermediate teir scrutiny.

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    Re: Cruz introduces bill defending states' rights on marriage

    Quote Originally Posted by bubbabgone View Post
    Same-sex marriage II: The arguments for : SCOTUSblog

    So, same as before, unless the strategy is to empty the legal quiver of every arrow - used & new, it seems wise to present arguments that don't look like they've already missed the target.
    Much better! Not only are you doing research but you are using one of the best sources. Now, it does not say quite what you claim, that the arrow missed the target(it hit at least once), but that it is not the primary argument. Now more than likely SCOTUS is not going to rule that SSM bans are gender discrimination, though they probably won't rule that it isn't. However it is possible they will directly address that and it certainly will be part of the oral arguments. So far, pretty much all the cases have had judges ruling in as narrow a fashion as possible. The common thread among decisions against SSM bans has been for the ruling to say(paraphrased) "well, it should be strict scrutiny because it is a fundamental right, and it could be Intermediate scrutiny based on a quasi-suspect class, but it fails under rational basis review, so we don't have to actually look at what level of review is best fitted". Based on that and the fact that SCOTUS seemed reluctant to rule on this until they had to, I think they will continue to make the ruling as narrow as possible. That would mean overturning the bans based on rational basis review and therefore not addressing the issues of potential gender discrimination, whether orientation falls under quasi-suspect classes, or even whether marriage for the purposes of EPC really is a fundamental right.

    Interestingly, the desire to make the ruling as narrow as possible actually limits the courts options to let SSM bans stand. To do that they do have to rule on much of that. The court then would have to rule specifically that rational basis review is the correct level of scrutiny since SSM bans would fail(or almost certainly fail) anything other than rational basis review. So the court would have to deny strict scrutiny on the basis of marriage being a fundamental right(a can of worms I do not think SCOTUS wants to open), deny both gender based discrimination claims and that orientation results in quasi-protected classes so that intermediate scrutiny does not apply, and then rule that SSM bans do serve a reasonable means to a legitimate government interest. This is not impossible and with the Windsor ruling SCOTUS suggested some willingness to rule more broadly than the lower courts(though in the other direction).
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    Re: Cruz introduces bill defending states' rights on marriage

    Quote Originally Posted by Zyphlin View Post
    Again, your lack of actual understanding of the judicial process and constitutional law, is striking as evidenced by actually reading the full blog. The court case it's referring to is not a SCOTUS case but actually a lower court case. The SCOTUS at the time did not actually take up the case, declaring that it was lackinga substantial federal question. That is not the case currently. Baker v. Nelson was also heard in 1972, a time in which no current members of the SCOTUS were on the bench AND prior to new precedence being set that classify gender as a hightened teir of scrutiny.

    Baker v. Nelson was a case ruled on at a time when precedent did not require gender discrimination to be substantially related to serving an important state interest. As such, it is not unquestioned defacto precedent today because it's ruling was based on a different criteria than exists on precedent today. Just as prevoius SCOTUS cases created precedent that was then undone when Brown v. Board of Education became precedence, so too could one argue that Baker v. Nelson's precedence is not definitive post Craig v. Boren.

    Baker v. Nelson, at best, indicates precedence that Gender descrimination when it comes to marriage does not rise to the level of violating the lowest tier of the EPC. However, it in no way provides precedence that Gender discrimination when it comes to marriage does not rise to the level of violating intermediate teir requirements of the EPC.

    Additionally, your argument that this has "already missed the target" is a poor one given the fact that post Windsor, only one of the multiple court of appeals that had these cases before them held that Baker had any actual controlling precedence in the case. I'd note, that the Windsor verdict came after your blog entry.

    From a technical sense, Baker is still precedence until the SCOTUS rules on the issue directly. However, the fact that lower appeals courts have not had a consistent record in recent years of applying it and/or outright disagreeing with it, the fact that it was ruled at a time prior to significant changes regarding the heightened scrutiny given to gender, and the fact you have a current SCOTUS Justice suggesting you can't extract much from Baker due to that makes a claim that it's "already missed the target" laughably naive and ignorant of the relaities of constitutional law.

    Precedence is not permanently binding, nor is it an entirely unheard of thing for the SCOTUS to re-look at a particular issue in light of changes that have occured since the previous ruling, and alter precedence. Considering multiple lower courts have found that the gender argument is legitimate, a SCOTUS justice has intimated that not much can be read into the Baker ruling, and the fact that there have been significant chances in precedence regarding constitutional law and the EPC in terms of Gender since the time Baker was ruled on, it is absolutely still a legitimate potential challenge on the constitutional nature of marriage. Baker provides no argument, what so ever, that gender discrimination in marriage doesn't violate the intermediate scrutiny necessary because at the time of it's ruling Gender was not deemed to require intermediate teir scrutiny.
    The writer doesn't appear to think the gender discrimination argument was very strong, unless " ... that advocates of equality for same-sex couples had previously relied upon fairly heavily but more recently have given less emphasis." has some secret coded tricky implication.
    You get really loquacious & jacked up about this argument.
    Are you on somebody's legal team pushing it or something?
    You sure do seem to be hanging a lot on this one argument that's been tried and beaten.
    But I have to admire the consistent lengths of your comments.
    Is wordsmithing necessary for your work?
    IF SOMETHING EXPLAINS EVERYTHING, IT EXPLAINS NOTHING.

  10. #440
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    Re: Cruz introduces bill defending states' rights on marriage

    Quote Originally Posted by Zyphlin View Post
    Again, your lack of actual understanding of the judicial process and constitutional law, is striking as evidenced by actually reading the full blog. The court case it's referring to is not a SCOTUS case but actually a lower court case. The SCOTUS at the time did not actually take up the case, declaring that it was lackinga substantial federal question. That is not the case currently. Baker v. Nelson was also heard in 1972, a time in which no current members of the SCOTUS were on the bench AND prior to new precedence being set that classify gender as a hightened teir of scrutiny.

    Baker v. Nelson was a case ruled on at a time when precedent did not require gender discrimination to be substantially related to serving an important state interest. As such, it is not unquestioned defacto precedent today because it's ruling was based on a different criteria than exists on precedent today. Just as prevoius SCOTUS cases created precedent that was then undone when Brown v. Board of Education became precedence, so too could one argue that Baker v. Nelson's precedence is not definitive post Craig v. Boren.

    Baker v. Nelson, at best, indicates precedence that Gender descrimination when it comes to marriage does not rise to the level of violating the lowest tier of the EPC. However, it in no way provides precedence that Gender discrimination when it comes to marriage does not rise to the level of violating intermediate teir requirements of the EPC.

    Additionally, your argument that this has "already missed the target" is a poor one given the fact that post Windsor, only one of the multiple court of appeals that had these cases before them held that Baker had any actual controlling precedence in the case. I'd note, that the Windsor verdict came after your blog entry.

    From a technical sense, Baker is still precedence until the SCOTUS rules on the issue directly. However, the fact that lower appeals courts have not had a consistent record in recent years of applying it and/or outright disagreeing with it, the fact that it was ruled at a time prior to significant changes regarding the heightened scrutiny given to gender, and the fact you have a current SCOTUS Justice suggesting you can't extract much from Baker due to that makes a claim that it's "already missed the target" laughably naive and ignorant of the relaities of constitutional law.

    Precedence is not permanently binding, nor is it an entirely unheard of thing for the SCOTUS to re-look at a particular issue in light of changes that have occured since the previous ruling, and alter precedence. Considering multiple lower courts have found that the gender argument is legitimate, a SCOTUS justice has intimated that not much can be read into the Baker ruling, and the fact that there have been significant chances in precedence regarding constitutional law and the EPC in terms of Gender since the time Baker was ruled on, it is absolutely still a legitimate potential challenge on the constitutional nature of marriage. Baker provides no argument, what so ever, that gender discrimination in marriage doesn't violate the intermediate scrutiny necessary because at the time of it's ruling Gender was not deemed to require intermediate teir scrutiny.
    Baker v Nelson was in 1971 when no state allowed any union of same sex individuals. As soon as states began to allow their citizens to join in civil unions and marriage [Massachusetts in 2004] the right of SSM was affirmed in states' and lower courts.


    Now the question is equal application of that right. The question is not if SSM lawful as it clearly is...the question is can a state keep banning SSM in the light of others being able to enjoy that liberty.


    The Nelson court would have to weight the question today in the same circumstances of states allowing SSM. As will the Robert's court.


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